Atul Kishore Pandey vs Union Of India & Ors.

Shri Dharmendra Tiwari, learned counsel for the applicant, and Shri Vinod Kumar Pandey, learned counsel for the respondents, were present at the time of hearing.

Present Original Application has been filed by the applicant being aggrieved by the impugned order dated 22.05.2021 by which the respondents rejected the case of the applicant for appointment on compassionate ground. By means of the present Original Application, the applicant has sought the following reliefs:-

Brief facts of this case are that the applicant’s father, late Shyam Kumar Pandey, died on 13.05.1996 during the service period working in the MES Cantt. Fatehgarh on the post of Upper Division Clerk. After the death of her husband, the mother of the applicant made several applications for giving appointment to the applicant under dying in harness rules vide her representations dated 21.06.1996, 10.07.1996, 03.03.1997 and 17.03.1997 requesting for compassionate appointment to the applicant. Subsequently, the Assistant Garrison Engineer, Fatehgarh vide its letter dated 01.07.1997 demanded certain documents from the mother of the applicant for consideration of the applicant for appointment on compassionate grounds in response to which the applicant’s mother submitted a representation along with all required documents on 16.08.1997. Thereafter, respondent No.2 by its order dated 09/29.06.2002 rejected the claim of the applicant. Aggrieved by the same, the applicant filed an Original Application No.1199/2002 challenging the aforesaid order before this Tribunal. The Original Application was dismissed by this Tribunal vide its judgement and order dated 15.05.2007. The applicant then filed a Writ Petition No.28448/2008 before the Hon’ble High Court against the order passed by this Tribunal. During the pendency of the aforesaid writ petition on assurance given by the respondents, the applicant submitted a Civil Misc. Withdrawal Application No.18011/2014 with the prayer for withdrawal of the writ petition since the respondents had given assurance to reconsider his case for appointment on compassionate ground. The withdrawal application was allowed on 21.05.2014. Thereafter, as per the assurance given to the applicant, respondent no.2 vide its letter dated 30.09.2014, re-opened his case for consideration as per the policy on the subject matter for appointment on compassionate ground under dying in harness rules in the next Yearly Board of 2013-14 but nothing was informed by the respondents about the outcome of the Board proceedings of 2012-14 to the applicant. As per information given by the respondents under RTI, the applicant obtained 73 marks in the Board proceedings of 2013-14 and his command seniority was 26. The number of vacancies allotted for compassionate appointment was 41 for the year 2013-14 with the highest cut off marks 97 and lowest 68. When the applicant got the information under RTI, he again approached the respondents and requested for appointment on compassionate ground receiving an assurance for the same by the respondents. Respondent No.2, by means of letter dated 14.09.2020, again demanded some documents of the applicant and again by means of letter dated 10.12.2020 demanded some certificate of the applicant for compassionate appointment which was under consideration. Ultimately, the impugned order dated 22.05.2021 was passed by the respondents rejecting the case of the applicant.

Learned counsel for the applicant contends that as per the marks secured by the applicant in the 2013-14 Board proceedings and the vacancies available, the applicant was fully eligible for appointment on compassionate ground but the respondents illegally and unlawfully delayed the matter without informing anything to the applicant about the outcome of the Board proceedings of 2013-14. He further submitted that the applicant was assured of reconsideration of his claim by the respondents as a condition for withdrawing the writ petition filed before the Hon’ble High Court and the applicant secured 73 marks when his case was reconsidered in the Board proceedings of 2013-14 which was well above the lowest cut off of 68 marks. Instead of considering the applicant against the vacancies available in the yearly board 2013-14, the respondents wrongly rejected the claim of the applicant considering him in the yearly board proceedings of 2018-19.

The respondents, on the other hand, contradict the claim of the applicant stating that there is no court order to consider his name and also no such authority in Headquarters Chief Engineer Central Command Lucknow to consider his case based on any other court case. Also the father of the applicant died twenty years back that time and the case filed by the applicant has already been dismissed by Hon’ble CAT Allahabad. Learned counsel for the respondents further states that certain updated current documents were asked from the applicant to get factual position of his social and financial position and his name was again considered in the board of officer for the year 2014-15, 2015-16, 2017-18 and 2018-19 where he was not considered as most deserving case by the board of officer. Besides, there is only a limited vacancy of 5% of the direct recruitment vacancies to be filled on compassionate ground and the applicant has to be more deserving in comparison to other candidates for a particular year to be appointed.

I have heard learned counsel for the parties and also analyzed the documents on record.

When the applicant’s case for appointment on compassionate grounds was first rejected by the respondents on not finding him fit, the applicant challenged the rejection before this Tribunal alleging that his case has not properly been considered in accordance with the relevant guidelines. The Tribunal, however dismissed the Original Application vide its judgement and order dated 15.05.2007. When the applicant filed the Writ Petition No.28448/2008 before the Hon’ble High Court against the order of the Tribunal, he was assured by the respondents that his case will be considered in the next Board if he withdraws the writ petition. In this regard, a letter dated 30.09.2014 by the SO (pers) For Chief Engineer addressed to HQ Chief Engineer Central Command reads as follows:- “...4. The indl filed WP No 24488 of 2008 which was withdrawn on 21 May 2014 on the assurance given by this HQ to consider his name in the next BOO on availability of vacancies. As the name of the individual has been considered once only therefore to keep the promise made by the department, it is required that the individual be given two more chances as per policy in vogue. Hence, his name will be considered in the yearly board of 2013-14…”. However, in a letter dated 21.09.2015, by the SE Dir (Legal) for Chief Engineer addressed to Headquarters Chief Engineer Lucknow, it was stated that “....2. No authority exists with your HQ to consider the case of the applicant though commitment was given by your HQ to consider case of the applicant based on which the WP was withdrawn by the applicant…..This HQ cannot be part of any such exercise to help the applicant, in violation to laid down instructions…4. In view of the above, name, of the applicant cannot be considered at this belated stage…”

It is not to be denied that the scheme of compassionate appointment does not necessarily imply that the dependent of each and every deceased Govt. employee will be offered appointment on compassionate ground and the most deserving of them shall be considered for appointment subject to the limited vacancy of 5% of the direct recruitment vacancies. Nevertheless, taking into consideration the facts quoted in the above paragraph, the respondents appear to have adopted contradictory attitudes at different times with respect to their assurance of conditional consideration of the applicant’s claim for appointment on compassionate ground if he withdraws the aforementioned writ petition. They have also demanded from the applicant certain documents and certificates when the applicant made another representation when he was not communicated the outcome of the 2013-14 Board proceedings and only came to know about it through RTI but the respondents rejected the claim of the applicant on the basis of 2018-19 Board proceedings vide the impugned order dated 22.05.2021.

In view of the above facts and discussion, this Original Application is disposed of with the direction to the respondents to reconsider the case of the applicant for appointment on compassionate grounds purely on merit on the basis of rules and regulation governing the subject of compassionate appointment and decide the case of the applicant by passing a reasoned and speaking order communicating the same to the applicant forthwith. No costs.